BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
      Health Division			)  Docket No:  SH-93272

	Plaintiff,			)

					)

	vs.				)  Citation No:  H5588-108-93

					)

Allen & Gibbons Logging,		)

					)

	Defendant.			)  OPINION AND ORDER



	Hearing was held in Medford, Oregon on June 8, 1995 before
Philip A. Mongrain, Administrative Law Judge.  OR-OSHA was
represented by Assistant Attorney General Norman F. Kelley.  The
employer, Allen & Gibbons Logging, was represented by Fred
Vedder as its designated representative.  The hearing was
reported by Business Support Services and was closed at its
conclusion.



	Exhibits 1-9 submitted and identified by Mr. Kelley on March
14, 1995 were admitted in evidence.  Also admitted in evidence
were Exhibit A, an information page by ESCO Corporation on
"Miscellaneous Logging Hooks", and Exhibit B, a cover
page and one additional page of "RIGGER'S HANDBOOK".



ISSUE



	Whether the employer violated OAR 437-6-240(13), as alleged by 
Citation No. H5588-108-93 on September 2, 1993.  The employer
has withdrawn its challenge to an alleged violation of OAR
437-6-435(20).



FINDINGS OF FACT



	On August 18, 1993 Safety Compliance Officer Scott Haviland
performed a routine inspection of the employer's logging
operation (Scott Haviland's testimony; Exhibit 2).  During the
course of that inspection he observed the nubbin (ferrule) on
one of the yarder guy lines to be set in the screwy hook at an
angle rather than straight in as designed, which caused a small
degree of bend in the cable near the nubbin (Scott Haviland's
testimony; Exhibits 4, 7).  Although the misaligned nubbin had
been known to the employer for the two days that the yarder had
been set up, the angle of misalignment was not severe, the bend
from the angle was not as severe as sometimes results from
attachment of the guy line to an irregular stump nor was it as
severe as the angle that results from the allowable use of a guy
line threaded through an "eye" attachment as opposed toa
nubbin/screwy hook, a small amount of bend is always present in
any event as the nubbin enters the screwy hook, the screwy hook
was pressed hard into the stump, the line appeared to be in good
shape and was not rubbing on anything, the only place the nubbin
could move is into the chamber seat, and the only
probable way for the line to pull out would be a break in
the line or the nubbin coming off (Scott Haviland's testimony,
Roy Gibbons' testimony,  Gary Espinosa's testimony).  The
employer had inspected the hook/nubbin attachment three times in
the two days of operation before Mr. Haviland's inspection,
including one during actual yarder operations, and the "side
rod" believed it to be safe and intended to fix it at a later
convenient time (Scott Haviland's testimony, Roy Gibbons'
testimony).



	Although Mr. Haviland did not believe the nubbin misalignment
to present an "imminent danger" that would require an immediate
shutdown of the yarder operation, after a short time the anchor
set up was corrected in five minutes during a lunch break (Scott
Haviland's testimony).  On the basis of a possible failed anchor
due to the improperly seated nubbin and possible damage to the
wire "over time", Mr. Haviland concluded that a hazard was
created in the form of injury from a yarder tower collapse or a
broken wire coming into the landing, which he assessed as a
medium probability of serious harm (Scott Haviland's testimony).
 Mr. Haviland has had previous extensive work experience as a
logger including setting up yarder towers and guy lines and he
has seen guy lines fail at the nubbin (Scott Haviland's
testimony).  Based on his observations he determined that the
employer had violated OAR 437-6-240(13) and a $350.00 penalty
should be assessed (Scott Haviland's testimony; Exhibit 1, page
3).  A citation was issued on September 2, 1993 alleging such a
violation and imposing the $350.00 penalty, along with an
allegation of a violation of OAR 437-6-435(20) and no assessed
penalty (Exhibit 3).



ULTIMATE FINDINGS OF FACT



	The misaligned nubbin observed by Scott Haviland was discovered
by the employer during regular inspection of the anchor and
presented neither a hazardous situation nor a risk of injury to
employees.



OPINION



	OAR 437-6-240(13) provides:  



"Anchors shall be regularly inspected while the operation is in progress. Insecure or hazardous anchors shall be immediately corrected."
The burden of proof is on OR-OSHA to prove by a preponderance of evidence a violation of this standard. Accident Prevention Division v. Sunrise Seed Company, 26 Or App 879 (1976); OAR 438-85-820. I am not persuaded that that burden has been met. There is no question that the nubbin was not properly seated in the screwy hook as contemplated by the design. However, the evidence is that the screwy hook/nubbin was solidly into the wood of the stump and Mr. Haviland testified that "apparently" the only way it would have pulled out would have been if the line broke or the nubbin came loose. As to those possibilities, the angle of bend close to the nubbin was slight and it is really only speculation that a slight bend probably would affect the strength of the line at that point. Thus, there is no evidence that the bend angle was greater than the "little bend" Mr. Haviland admitted normally occurs at the point where the wire enters the screwy hook and works back and forth. There is no evidence that the bend was as severe as that which may occur simply from the attachment of the guy line around an irregular stump, which apparently would not be the basis for a violation according to Mr. Haviland's testimony. There is no evidence that the bend angle was anywhere near as great as the kinked wire that results from an anchor created by a guy line threaded through an "eye", which is apparently legal according to the uncontradicted testimony of Roy Gibbons. The uncontradicted evidence indicates that visually the line looked fine. The fact is that there is simply no basis but speculation for concluding that the guy line was probably subject to breaking because of the improperly seated nubbin. Similarly, considering the small bend angle and the appearance of the wire there is no basis but speculation upon which to conclude that because of that improper seating the guy line would be subject to increased risk of breaking at some undetermined later time. I fully appreciate OR-OSHA's expertise and its clear duty to sometimes arguably "nit pick" in the interest of worker safety, but in my opinion the "bottom line" in this case is that there is no preponderance, a greater weight, of evidence that the nubbin misalignment was in fact an insecure or hazardous anchor. As far as the regulation's requirement of regular inspection of anchors and the citation's allegation that the anchor was not regularly inspected, the evidence establishes that in the two days prior to Mr. Haviland's appearance the anchor was inspected one or two times during set up of the yarder and once during actual yarder operation. The term "regular" is so vague that absent some statutory definition or case authority stating that the employer's two or three inspections during a two day period does not qualify as "regular" inspection, I cannot conclude that it was not. Considering the above factors it is my conclusion that the alleged violation of OAR 437-6-240(13) described in item 1-1 of the citation has not been proved by a preponderance of the evidence. Therefore, that alleged violation must be dismissed. The violation alleged by item 2-2 is not being challenged and therefore, of course, must be affirmed. CONCLUSIONS OF LAW (1) The employer did not violate the safety standards as set forth in item 1-1 of Citation No. H5588-108-93. (2) The employer violated the safety standard as set forth in item 2-2 of Citation No. H5588-108-93. ORDER IT IS HEREBY ORDERED that item 1-1 of Citation No. H5588-108-93 is dismissed and item 2-2 is approved. NOTICE TO ALL PARTIES: If you are dissatisfied with the Order you may, not later than SIXTY (60) days after the mailing date on this Order, request a review by the Court of Appeals, Third Floor, Justice Building, Salem, Oregon 97310, pursuant to ORS 183.480, 183.482. A request for review shall be mailed to the Court of Appeals at the above address with copies of such request mailed to all other parties to this proceeding. Failure to mail such a request for a review within SIXTY (60) days after the mailing date of the Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER. Entered at Medford, Oregon, July 20, 1995 Workers' Compensation Board Philip A. Mongrain Administrative Law Judge